Trial Strategy: A Method to the Madness & Valuing Your Case

Saturday, August 17, 2013

As trial lawyers, the attorneys at Overbey, Hawkins & Wright are always looking for new and better ways to present evidence and make arguments in a jury trial. We balance key factors such as the law, the facts, the sensibilities of the jurors and our tried and true experience. Our clients hire us to make strategic choices that optimize their ability to receive compensation from defendants who have caused injuries through inattention or negligence. Choosing how to present the facts and how to compensate many seemingly immeasurable injuries, a lot of thought goes into the best, most effective way to communicate to the jury.

Lawyers are limited in what they can and cannot say to a jury. Obviously, the lawyer can argue the facts and the law to the jury. The issue may be negligence on the part of the defendant or contributory negligence which bars recovery all together in Virginia. Or, the issue may be how much the injured plaintiff’s claim is worth. Valuing a particular case is very difficult and takes many factors into account.

Virginia has multiple “elements” of damages including the obvious current and future medical expenses and current and future pain and suffering and the not-so-obvious elements such as past and future inconvenience, bodily injury, past and future lost wages or lessening of earning capacity, etc. Here is a snapshot of a sample damages jury instruction upon which the jury will base its verdict:

A snapshot of a sample damages jury instruction upon which the jury will base its verdict

As a general rule or perhaps it’s more like a guideline, the most universally accepted trial practice has been to explain all of the elements of the plaintiff’s damages and ask the jury for a lump sum amount of damages that fully and fairly compensates our client for her injuries. This practice was difficult in many cases because it seems like that number is too high, but in reality, the number is intended to represent all of the individual elements of damages. That number is the sum of all the parts, if you will. And lawyers were generally prohibited from breaking the lump sum down and telling the jury how much ought to be awarded for each element.

Not any more. On March 2, 2012, the Supreme Court of Virginia issued an opinion, Wakole v. Barber, which affirmed a plaintiff’s lawyer who did just that. The lawyer created a chart with all of the elements of damages that were relevant to the case, and assigned an amount to each one. This way, the jury could see why the lawyer was asking for a specific amount and how the lawyer arrived at that number. This method seems to more accurately communicate the issue of damages to the jury. It also helps plaintiffs’ lawyer’s the ability to build credibility with the jury.

For example, now, the plaintiff’s lawyer can present the following chart to the jury.

DISCLAIMER: THIS CHART MUST BE READ IN CONTEXT AND DEPENDS ON A VARIETY OF FACTORS UNIQUE TO EACH SPECIFIC CASE. EVERY CASE IS DIFFERENT AND DEPENDS ON THE CIRCUMSTANCES. NOTHING IN THIS ANNOUNCEMENT SHOULD BE INTERPRETED TO GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE. OVERBEY, HAWKINS & WRIGHT CANNOT GUARANTEE ANY RESULTS FOR ANY CASE. Advertising., Prof. Conduct Rule 7.2 (2002).

Bodily Injuries Sustained

$15,000

The Effect on the Plaintiff’s Health According to Degree and Probable Duration

$15,000

Physical Pain Suffered in the Past

$15,000

Physical Pain Suffered in the Future

$50,000

Mental Anguish Suffered in the Past

$15,000

Mental Anguish Suffered in the Future

$50,000

Inconvenience Suffered in the Past

$15,000

Inconvenience Suffered in the Future

$30,000

Medical Expenses Incurred in the Past

$30,000

Lost Wages

$15,000

Total Damages

$250,000

This example is not based on any mathematical formula other than adding the sum of the parts to arrive at a lump sum damages amount. Other than past medical expenses and lost wages, these numbers are difficult to arrive at and here are not based on any facts. However, depending on the case, the facts will support different variations of formula above. There may be a case where the injuries do not last very long so the effect on the plaintiff’s health according to the degree a probable duration will be much less than listed above.

A lot of thought and planning is involved in valuing your case and presenting that value to a jury. If you have been injured in a car accident, trucking accident, bicycle accident, or any other type of accident through no fault of your own, call us at Overbey, Hawkins & Wright for a free consultation on your personal injury case.

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